the first amendment in the foreign affairs realm

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1-1-1993

The First Amendment in the Foreign Affairs Realm:Domesticating the Restriction on CitizenParticipationBrad R. RothWayne State University

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Recommended CitationBrad R. Roth, The First Amendment in the Foreign Affairs Realm: Domesticating the Restriction on Citizen Participation, 2 Temp.Pol. & Civ. Rts. L. Rev. 255, 292 (1993)Available at: https://digitalcommons.wayne.edu/lawfrp/437

http://digitalcommons.wayne.edu/



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The First Amendment in the ForeignAffairs Realm: ""Domesticating" theRestrictions on Citizen Participation

by BRAD R. ROTH*

I. INTRODUCTION

Courts, constitutional scholars, and ordinary citizens of the UnitedStates have long recognized the crucial role of free speech and free accessto information in a democratic polity. Without an airing of the widestrange of views and information, governmental actions are shielded fromproper review and evaluation, resulting in the concentration of politicalpower in the hands of dictatorial authorities. A democracy requires thatdecisionmaking power be widely dispersed, with citizens free to evaluateindependently the issues of the day, to associate with like-minded per-sons, and to take appropriate action. Such action may involve organizingto defeat elected officials whose decisions do not embody the citizens'values or ideas, or it may extend to participation in public affairs outsidethe realm of the electoral process, in voluntary projects that bring tobear, in former President Bush's expression, "a -thousand points oflight."'

Yet this seemingly uncontroversial proposition remains open to re-markable challenges when the issues involved relate to foreign affairs. Inthis field, the constitutional lines are poorly demarcated, and the reach ofrestrictive legislation unclear. The unabashedly repressive legislativemindsets of past eras, which brought us such statutory schemes as theAlien and Sedition Acts2 of the 1790s and the Subversive Activities Con-trol Act3 of the 1950s, have left a residue that poses a continuing danger

* Doctoral student, Jurisprudence and Social Policy Program, Boalt Hall School of Law,

University of California at Berkeley. B.A. 1984, Swarthmore College; J.D. 1987, HarvardUniversity; LL.M. 1992, Columbia University. The author would like to thank Lori FislerDamrosch and David D. Caron for their helpful commentary.

1. George Bush, Stakes are High and Choice is Crucial, Address Before the 1988 Repub-lican National Convention (August 18, 1988), in L.A. TIMES, August 19, 1988, § 1, at 6.

2. Four separate statutes comprised the Alien and Sedition Acts. One is still in forcetoday, but applies only in time of war: the Alien Enemies Act, ch. 66, 1 Stat. 577 (1798)(current version at 50 U.S.C. §§ 21-23 (1988)). The remaining three have either been repealed,the Naturalization Act, ch. 54, 1 Stat. 566 (1798) (repealed 1802), or have expired. The Sedi-tion Act, ch. 74, 1 Stat. 596 (1798) (expired 1801); the Alien Act (or Alien Friend Act), ch. 58,1 Stat. 570 (1798) (expired June 25, 1800).

3. 50 U.S.C. §§ 781-98 (1988).

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256 TEMPLE POLITICAL & CIVIL RIGHTS LAW REVIEW

to constitutional liberty, and thus to democratic control over decisions oflife-and-death consequence for Americans and for the world at large.

The assertion that free speech and association must give way in thefield of foreign affairs has been made with astounding brazenness. Illus-trative is the following colloquy between the Government and the benchduring the argument held before the United States Supreme Court in the1981 passport revocation case of Haig v. Agee:4

QUESTION: General McCree, supposing a person rightnow were to apply for a passport to go to [El] Salvador, andwhen asked the purpose of his journey, to say, to denounce theUnited States policy in [El] Salvador in supporting the junta.And the Secretary of State says, I just will not issue a passportfor that purpose. Do you think that he can consistently do thatin light of our previous cases?

MR. McCREE: I would say, yes, he can. Because wehave to vest these- The President of the United States and theSecretary of State working under him are charged with con-ducting the foreign policy of the Nation, and the freedom ofspeech that we enjoy domestically may be different from thatthat we can exercise in this context.5

As highlighted in Justice Brennan's dissent, such restriction of constitu-tional liberty in the foreign affairs arena is precisely the implication of theCourt's decision in Haig v. Agee.6 Although in 1991 Congress, seeking tocounteract that implication, specifically barred the Executive from revok-ing passports on the basis of mere speech uttered abroad,7 disparagementof First Amendment rights remains an enduring feature of foreign affairslaw.

The idea that constitutional liberty is a lesser value where foreignaffairs issues are involved is mistaken and pernicious. As Justice Blackmade clear in his famous Pentagon Papers' concurrence, the democraticfunction of First Amendment freedoms (in that case, freedom of thepress) is all the more pronounced in foreign affairs:

Only a free and unrestrained press can effectively expose decep-tion in government. And paramount among the responsibilitiesof a free press is the duty to prevent any part of the government

4. 453 U.S. 280 (1981).5. Id at 319 n.9 (Brennan, J., dissenting) (emphasis added) (quoting transcript of January

24, 1981 oral argument, at 20).6. Id.7. 22 U.S.C. § 2721 (1992). See H.R. REP. No. 53, 102nd Cong., 1st Sess. 47 (1991) and

H.R. CONF. REP. No. 138, 102nd Cong., 1st Sess. 102 (1991), reprinted in 1991 U.S.S.C.A.N.384, 401-02 (citing Agee in explaining the need for "clarification" of the authority delegated tothe Executive).

8. New York Times Co. v. United States, 403 U.S. 713 (1971).

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Snrin2 19931TH FISAM DEN

from deceiving the people and sending them off to distant landsto die of foreign fevers and foreign shot and shell .... In re-vealing the workings of the government that led to the Vietnamwar, the newspapers nobly did precisely that which the Foun-ders hoped and trusted they would do.9

The substance of Justice Black's point is not limited to freedom ofthe press. The thousands of North American visitors to Central Americaduring the 1980s, who returned to hold meetings illuminating the natureand consequences of the U.S. policies in the region, fulfilled the sameinformative function as the publishers of the Pentagon Papers. Indeed,these persons consistently disseminated information beyond and at vari-ance with that available from the mainstream press, which gave the is-sues less thorough attention and which drew heavily on official sources.

Moreover, the familiar notion that the nation "speaks with onevoice" in foreign affairs, a notion that figures so prominently in the re-strictive view of foreign affairs liberties,"0 invokes a state-centered view ofinternational interaction that can only be described as archaic. In themodern era, U.S. citizens are also citizens of the world; their participa-tion in issues and events abroad have long since ceased to be necessarilymediated through the vehicle of their government. Individually and asmembers of non-governmental organizations (NGO's), citizens providemoney, labor, and know-how to address human needs abroad, investigateand denounce human rights violations, and help to mediate conflicts-allwithout the U.S. Government's involvement, and often to its consterna-tion. A country claiming to be the world's leading democracy canscarcely argue that constitutionally-protected participatory liberties endat the national border, or apply only to discourse with fellow U.S.citizens.

It is thus imperative to expose and rein in the statutory and regula-tory schemes that may risk limiting or chilling First Amendment free-doms in the foreign affairs realm. These inhibitory laws can beeradicated or "domesticated" by bringing the relevant standards of con-stitutional scrutiny into line with the standards applied to statutes andregulations of purely domestic concern. Such "domestication" of speech-related foreign affairs regulations can be accomplished without compro-mising either national security or the Government's ability to administerits foreign policy, though not without requiring the Government to toler-ate gadflies. Unless the foreign affairs activities that can be regulated or

9. I. at 717.10. See Detley F. Vagts, The Logan Act: Paper Tiger or Sleeping Giant?, 60 AM. J. INT'L

L. 268, 269 (1966). See also United States v. Pink, 315 U.S. 203, 242 (1942) (discussing partic-ipation of state governments in foreign affairs); 106 CONG. REC. 8625 (1960) (Senator Ful-bright's comments regarding the Logan Act and individuals' participation in foreign affairs).

Sorine 1993] THE FIRST AMENDMENT


prohibited are clearly and decisively limited to those analogous to regul-able or prohibitable activities in the domestic realm, citizens will be de-nied the participatory rights that lie at the core of First Amendmentjurisprudence.

II. ASPECTS OF THE PROBLEM: LAWS RESTRICTIVE OF EXPRESSION

AND ASSOCIATION IN THE FOREIGN AFFAIRS REALM

A. The Foreign Agents Registration Act

In May 1990, a group called the National Agenda for Peace in ElSalvador (National Agenda) placed an advertisement in the WashingtonPost, featuring "An Open Letter on El Salvador to President Bush andthe Congress," signed by the Archbishop of Seattle, the former Governorof New Mexico, two-time Presidential candidate Rev. Jesse Jackson, civilrights leader Coretta Scott King, and some two dozen other prominentpersons, mostly clergy."l The letter called "on the Administration andthe Congress to support a political solution to the conflict in El Salvador,by conveying as strongly as possible the U.S. desire that all parties, in-cluding the Salvadoran military, bargain in good faith." 2 It furthercited a finding by a Congressional task force that insufficient progresshad been made in the investigation of the murders of six Jesuit priests inEl Salvador, and urged the suspension of "the U.S. aid which fuels thewar in El Salvador."1 3

Soon afterward, the National Agenda received a communicationfrom the Department of Justice, which stated that the advertisement "in-dicates that you are engaged in publicity activities on behalf of theFarabundo Marti National Liberation Front (FMLN)," the Salvadoranguerrilla organization.14 The letter also stated that the National Agenda,because of its advertisement, "may have incurred an obligation to regis-ter pursuant to the Foreign Agents Registration Act of 1938 (FARA) asamended, 22 U.S.C. § 611 et seq."15 The letter from the Justice Depart-ment demanded "a description of the nature of your activities for or inthe interest of the FMLN" and queried "whether your activities are di-rected, controlled, financed, or subsidized in whole or in part by a foreigngovernment, foreign political party or foreign organization."' 16

The Justice Department inquiry into the National Agenda might

11. WASHINGTON POST, May 15, 1990, at A20.12. Id.13. Id.14. Undated letter from Joseph E. Clarkson, Chief, Registration Unit, Internal Security

Section, Criminal Division, United States Department of Justice, to the National Agenda forPeace in El Salvador (copy on file with the Temple Political & Civil Rights Law Review).

15. Id.16. Id.

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easily be dismissed as an example of overreaching by an overzealous offi-cial who misunderstood the applicable law. After all, as two House sub-committee chairs pointed out in their joint protest to the AttorneyGeneral, "There is nothing in the ad to indicate that the group is engagedin activities on behalf of any foreign principal."' 7 Yet this incident wasnot an anomaly; it arose as a natural consequence of FARA's breadth.The wording of the statute invites intrusive inquiries into the precise con-tent of dialogue between U.S. citizens and representatives of foreign orga-nizations, and risks branding as "foreign agents" citizens whose opinionson foreign affairs place them in sympathy with the goals of foreignorganizations.

Under FARA, an "agent of a foreign principal" includes:any person who acts as an agent, representative, employee, orservant, or any person who acts in any other capacity at theorder, request, or under the direction or control of a foreignprincipal or of [a foreign principal's agent] and who directly orthrough any other person -

(i) engages within the United States in political activitiesfor or in the interests of such foreign principal .... .

The term "political activities" is broadly defined. 9 Unless construed assurplusage, the words "in the interests of' mean something distinct fromand broader than "for" (or "on behalf of"). 20 Although the legislativehistory establishes that this clause ought not to be interpreted to includecircumstances involving an incidental confluence of interests, 2' the exist-ence of a "request" may tend to negate any presumption that the conflu-ence was incidental.22

17. July 10, 1990 letter from U.S. Representative Robert W. Kastenmaier and U.S. Rep-resentative Don Edwards to Attorney General Richard L. Thornburgh, at 1. The Congress-men wrote as chairmen of the House Subcommittee on Courts, Intellectual Property and theAdministration of Justice, and the House Subcommittee on Civil and Constitutional Rights,respectively (copy on file with the Temple Political & Civil Rights Law Review).

18. 22 U.S.C. § 61 l(c)(l) (1988) (emphasis added).19. The term "political activities" includes any activity that might persuade any section

of the public regarding U.S. foreign policy issues or the policies of a foreign entity. See 22U.S.C. § 611(o) (1988).

20. Statutory interpretation doctrine includes a presumption against construing addi-tional words as surplusage. See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) ("Ca-nons of construction ordinarily suggest that terms connected by a disjunctive be given separatemeanings, unless the context dictates otherwise .... ").

21. The Act is not intended to cover "persons who are not, in fact, agents of foreignprincipals but whose acts may incidentally be of benefit to foreign interests ...." H.R. REP.No. 1470, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 2397, 2401.

22. For example, active opposition to the Gulf War could scarcely have been construed,without more, as political activity "in the interests of" Saddam Hussein's regime, even thoughsuch opposition would have served the interests of the Iraqi government. If the Iraqis had"requested" an individual or organization to take action in opposition to the war, however, "inthe interests of" seems sufficiently broad to sweep in any action taken pursuant to the request,

Spring 1993] THE FIRST AMENDMENT


The central problem in the interpretation of FARA is the term "re-quest." This term's definition was the subject of a pivotal Second Circuitdecision in Attorney General of the United States v. Irish Northern AidCommittee ("INA C'). 23 INAC involved a voluntary association active incollecting money and material aid for the Republican cause in NorthernIreland. 24 The Attorney General brought suit to compel INAC to regis-ter as an agent of the Irish Republican Army, Provisional Wing (IRA)and to comply with the highly detailed demands for information specifiedby FARA.25 INAC denied that it was an agent of the IRA, contendingthat its activities constituted "a citizen's constitutionally protected ex-pression of political beliefs and sympathies. ' 26 INAC further asserted,consistent with the 1946 Third Circuit decision in United States v. Ger-man-American Vocational League," that an "agent" must be defined inaccordance with Section 1 of the Restatement (Second) of Agency, whichrequires that the agent be subject to the principal's "control.- 28 The dis-trict court disagreed, stressing the disjunctive "or" in the wording of thestatute, and held that "it is sufficient to establish agency under the Actthat defendant is a 'representative' of the IRA, or acts at its 'request.' ",29

The court went on to hold, on the basis of a large number of exhibits,that the requisite relationship was "unequivocally establish[ed]."'

The Second Circuit affirmed the lower court's opinion, but addedwhat it termed "a note of caution" regarding the term "request., 3 Thecourt agreed with the holding below that "control" was not a require-ment of agency under FARA, since the "concern [was] not whether theagent can impose liability upon his principal but whether the relationshipwarrant[ed] registration by the agent to carry out the informative purposesof the Act."'3 2 Yet the court recognized that if "request" was "to be un-derstood in its most precatory sense," enforcement of the Act would ex-tend to "conduct that Congress did not intend to regulate"-that is,conduct only incidentally beneficial to foreign interests. 33 Having ac-ceded to the rejection of the most obviously workable standard, the court

whereas "for" or "on behalf of" would have seemed to interpose an additional requirementthat the action have been taken solely for the regime's benefit.

23. 668 F.2d 159 (2d Cir. 1982) (per curiam), affig 530 F. Supp. 241 (S.D.N.Y. 1981).24. 530 F. Supp. at 245.25. Id. at 246-48 (referring to 22 U.S.C. § 612(a), which denotes required contents of

registration statement).26. INAC, 530 F. Supp. at 251.27. 153 F.2d 860, 864 (3d Cir. 1946), cert. denied, 328 U.S. 833 (1946).28. INAC, 530 F. Supp. at 256.29. Id. at 257.30. Id.31. INAC, 668 F.2d at 160-61.32. Id. at 161 (emphasis added).33. Id. & n.5.

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embarked on what amounted to an effort to keep Pandora's Box half-closed.

The court's failure to develop a convincing alternative standard wasforeordained because the task the court defined for itself was beset withcontradiction. If FARA's definition of an "agent" is at variance with thecommon-law and commonsense definition of the term, the result is dis-informative. As Justice Black explained, FARA "is intended to labelinformation of foreign origin so that hearers and readers may not bedeceived by the belief that the information comes from a disinterestedsource."34 In other words, the listener is entitled to know whether thespeaker is speaking in his own voice as an opinionated American citizen,or whether he is speaking as the obligor of a foreign entity, and thusindifferent to the actual merits of his statements. By dubbing the speakeran "agent" even though he has not subjected himself to foreign control,the enforcer of the Act defames the exercise of constitutionally-protectedexpression.

The point is clearer if one recognizes that the Act's purpose, at leastas originally conceived, was not merely to identify but to denounce.35

The House Judiciary Committee proposed the legislation in 1937 in re-sponse to evidence purporting to show that foreign agencies were "violat-ing both the letter and the spirit of international law" by supplying"funds and other materials to foster un-American activities, and to influ-ence the foreign and domestic policies of this country."' 36 The goal wasto compile

information about [the agents'] political propaganda activities,their employers and the terms of their contracts ... so that theAmerican people may know those who are engaged in thiscountry by foreign agencies to spread doctrines alien to ourdemocratic form of government, or propaganda for the purposeof influencing American public opinion on a politicalquestion.37

This implies that Congress' intent was to cover improper activities con-trolled by foreign agencies. It was hoped that the "spotlight of pitilesspublicity [would] serve as a deterrent to the spread of perniciouspropaganda.38

Admittedly, the Act's 1966 amendment 39 expanded FARA's initialpurpose beyond exposure of foreign-sponsored subversion to exposure of

34. Viereck v. United States, 318 U.S. 236, 251 (1943) (Black, J., dissenting).35. H.R. REP. No. 1381, 75th Cong., 1st Sess. 1-2 (1937).36. Id.37. Id. (emphasis added).38. Id. at 2 (emphasis added).39. Pub. L. No. 89-486, 80 Stat. 244 (1966).

Strin2 19931 THE FIRST AMENDMENT


lobbying by foreign entities eager to influence U.S. policies to suit theireconomic and political interests.4° Yet there is no indication that theamendment was intended to expand coverage to persons not controlledby foreign interests; indeed, the legislative history is directly to the con-trary.4' Moreover, if coverage of the lobbying efforts of allied or neutralgovernments and organizations dilutes some of the "subversive" stigmaof the registration requirement, it surely does not eradicate the tinge ofdisrepute. As illustrated by Patrick Buchanan's campaign advertise-ments revealing the registration of key Presidential (Bush) associates, in-cluding the Republican National Committee Chairman, as agents ofJapanese and Korean entities, registration under FARA may be viewedas evidence that the registrant is, if not completely unpatriotic, certainlynot to be trusted in matters of public interest.42

Even assuming that some purposes of the statute were served, ratherthan subverted, by broadening coverage to those not under the control ofa foreign entity, the Second Circuit's question in INAC of "whether therelationship warrants registration by the agent to carry out the informa-tive purposes of the Act"43 does not rise to the level of a test-at least,not one that would satisfy the constitutional requirement of fair notice asto the conduct covered." The court presumably recognized this, butconceded that in its conception, "[t]he exact perimeters of a 'request'under the Act are difficult to locate."45

According to the court, a "request" falls "somewhere between acommand and a plea," and the surrounding circumstances will indicatewhether registration is required.46 This "totality-of-the-circumstances"test centers on "whether those requested to act were identified with speci-ficity by the principal" and on "the specificity of the action requested."47

The court thus distinguished between "members of a large religious, ra-cial or ethnic group respond[ing] to pleas for contributions or generalized

40. See Note, The Foreign Agents Registration Act: A New Standard for DeterminingAgency, 6 FORDHAM INT'L L.J. 365, 368 (1983).

41. See H.R. REP. No. 1470, supra note 21, at 2401 (whatever the original intent, it "doesnot appear warranted in present circumstances" to extend coverage to "persons who are not,in fact, agents of foreign principals but whose acts may incidentally be of benefit to foreigninterests").

42. In Meese v. Keene, the Supreme Court was persuaded by expert testimony and apublic opinion survey that the Act's classification of foreign-sponsored advocacy as "politicalpropaganda" was stigmatizing, and could damage the political fortunes of a public official whoexhibited films so classified. The Court nonetheless upheld the constitutionality of that aspectof the Act. Meese v. Keene, 481 U.S. 465, 473-74 & nn.7-8 (1987).

43. INAC, 668 F.2d at 161.44. See Note, supra note 40, at 380 n. 11. See also Grayned v. Rockford, 408 U.S. 104

(1972).45. INAC, 668 F.2d at 161.46. Id.47. Id.

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political support" and a "sufficiently limited group of identifiable individ-uals" who are asked to follow "a particular course of conduct." Thelatter circumstances "may show that those 'requested' are in some wayauthorized to act for or to represent the foreign principal. ' 48 The uncer-tainty of this "test" is self-evident.

Unfortunately, the circumstances presented in the INAC case pro-vide few additional clues to determine whether an organization is actingas an agent for FARA purposes. The vast array of internal memorandaquoted by the district court included a range of statements indicatingINAC's support of, and communication with, the IRA leadership.49

Neither court indicated which of the quotations led it to conclude thatINAC operated at the IRA's "request." Most plausibly persuasive wasan INAC official's written statement describing the group as "the onlyorganization in America authorized by the Republican Movement in Ire-land to collect money for food, clothing, etc. . . ."0 However, neithercourt set this statement apart from any of the more generalized state-ments of support. In any event, this "authorization" would seem to es-tablish only that the IRA had vouched to its American supporters for thetrustworthiness of INAC, and that the IRA preferred contributions fromthe U.S. to be coordinated through a single source. None of the memo-randa contained evidence of a stronger connection to the IRA; there wasno indication, for example, that the IRA selected INAC's leaders, or thatINAC's political "line" was set by the IRA without respect to the in-dependent judgment of INAC leaders or members.51 Under the INACruling, then, any U.S. organization (or individual) supportive of, andhaving a working relationship with, a foreign organization is vulnerableto FARA.

The sweep of "request," as defined in INAC,52 is potentially formi-dable. Foreign affairs activists are regularly asked by representatives offoreign governments and political organizations to perform any numberof activities, from arranging a U.S. speaking tour for a foreign politician,to initiating a petition drive demanding the cessation of a policy or re-lease of a political prisoner, to bringing a certain fact to the attention ofofficials, media, or the public. As a general example, the foreign repre-

48. Id. at 161-62 (emphasis added).49. INAC, 530 F. Supp. at 257-58.50. Id. at 258.51. The latter standard would still be troubling. An American activist whose sympathies

lead her presumptively to follow the line established by a foreign political organization stillspeaks in her own voice. So, too, does the joint citizen or resident alien who chooses to be amember of the foreign political organization, and thus perhaps to subject herself to party disci-pline, as long as she is under no legal obligation or other compulsion to follow the party'sdictates or to remain with the party.

52. INAC, 668 F.2d at 161.

THE FIRST AMENDMENTSpring 19931


sentative may tell the activist, "If you are disposed to help us, the bestway would be for you to do 'X.'" In this situation, "X" may be some-thing very specific, and may not be the subject of any general "plea," yetthe activist's independence is in no way undermined. The activist's af-firmative response to requests made personally to her by representativesof an organization may be based solely on her independent judgment ofwhat is just and reasonable. (Indeed, she may on this basis comply witha request even from an organization that she does not particularly sup-port.) Thus there may be no real inconsistency between a "request," nomatter how specific its subject matter or addressee, and the incidentalconfluence of interests that the INAC court conceded to be beyond theintended scope of FARA.

The greatest danger of FARA is not the likelihood that its substan-tial criminal penalties" a will actually be applied, or even that many in-dependent activists or activist groups will actually be compelled toregister as foreign agents.54 Rather, the real danger is that the loose "re-quest" standard will provide the basis for far-reaching inquiries, backedby subpoena or civil discovery power, into "relevant" communicationsbetween politically active American citizens and politically active for-eigners, as well as into ensuing communications taking place exclusivelyamong American citizens." The result, then, would be to impose one ofthe most alarming consequences of FARA-the obligation to divulge de-tailed information about communications with foreigners-on individu-als and groups who, upon closer scrutiny, clearly appear to be beyond theAct's coverage. In addition to interfering with the associational freedomof Americans, 6 disgorgement of such information could, among other

53. See 22 U.S.C. § 618(a) (1988); 18 U.S.C. § 951 (1988).54. This is so despite the current executive and judicial trends toward more expansive

enforcement. For example, in 1980, Assistant Attorney General Heymann stated that it is"fair to draw the conclusion that an individual is not acting independently .... but is acting asan agent or alter ego of the foreign principal," only when "the relationship substantially obli-gates the agent to the foreign principal." Inquiry into the Matter of Billy Carter and Libya:Hearings before the Subcomm. to Investigate the Activities of Foreign Governments of the SenateComm. on the Judiciary, 96th Cong., 2d Sess. 700-01 (1980) (statement of Phillip B. Heymann,Assistant Attorney General). In comparison, the more recent positions taken by the Govern-ment in the INAC and National Agenda incidents would require a number of individuals andorganizations to follow the mandates of FARA, even if they do not appear to be controlled bya foreign principal. See supra text accompanying notes 14-33. See also supra text accompany-ing notes 27-32 (judicial definition of what constitutes "agency" for purposes of FARA be-comes more expansive).

55. Civil discovery yielded the plethora of internal documentation cited by the districtcourt in INAC. See 530 F. Supp. at 257-58. The Justice Department ultimately relented in theNational Agenda incident related above. See supra text accompanying notes 11-16.

56. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958); Sweezy v. New Hampshire, 354U.S. 234 (1957). Both cases discuss the right to freedom of association as provided under theU.S. Constitution.

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SDring 19931]H IS MNMN

things, pose serious dangers to foreign political activists operating underconditions of repression in their own countries, and to American activistssubsequently travelling in such countries. FARA, therefore, has a chil-ling effect on political participation that potentially goes far beyond thestigmatization brought on by the Act's application.

B. The Logan Act

The Logan Act of 1799 (Logan Act)5 7 presents a set of problemsclosely related to those posed by FARA. The subject matter, however, isthe inverse: whereas FARA is concerned with what foreigners say toAmericans, the Logan Act is concerned with what Americans say to for-eigners. Moreover, whereas FARA does not purport to bar speech (ex-cept by those who have breached an obligation to register), the LoganAct is directly prohibitory. The Logan Act reads as follows:

Any citizen of the United States, wherever he may be,who, without authority of the United States, directly or indi-rectly commences or carries on any correspondence or inter-course with any foreign government or any officer or agentthereof, with intent to influence the measures or conduct of anyforeign government or of any officer or agent thereof, in rela-tion to any disputes or controversies with the United States, orto defeat the measures of the United States, shall be fined notmore than $5,000 or imprisoned not more than three years, orboth.

This section shall not abridge the right of a citizen to ap-ply, himself or his agent, to any foreign government or theagents thereof for redress of any injury which he may have sus-tained from such government or any of its agents or subjects.58

In lay parlance, the Logan Act is generally described as a law whichprevents U.S. citizens from negotiating with a foreign government on be-half of the United States without authorization.59 In actuality, the Actpurports to bar all communication with representatives of a foreign gov-ernment made "with intent to influence [its] measures or conduct in rela-tion to any disputes or controversies with the United States, or to defeatthe measures of the United States ... ."I The statutory language, inter-preted broadly, describes almost any conversation a foreign affairs ac-tivist might be inclined to have with a foreign official.

57. 18 U.S.C. § 953 (1988).58. Id.59. Hedrick Smith, Administration and Jackson's Trip: Limits of Citizen Diplomacy

Tested, N.Y. TIMES, July 7, 1984, at A8; Nathan Lewin, Travels with Ramsey, THE NEWREPUBLIC, June 23, 1980, at 17.

60. 18 U.S.C. § 953 (emphasis added). Note the exemption for citizens applying to for-eign governments for redress of private injuries. Id.

Svring 1993] THE FIRST AMENDMENT


In the 194 years that the Logan Act has been on the books, therehave been no convictions, no trials, and just one indictment. 6' Thus, thestatute might appear a dead letter, were it not periodically brandished byAdministrations embarrassed by activists displaying in foreign capitalstheir opposition to U.S. policies. Logan Act sabre-rattling has reap-peared during almost every period of foreign policy controversy over thepast two centuries. 62 Indeed, the lack of a judicial test has, paradoxi-cally, preserved the Act as a latent weapon for use in chilling, or at leastimpugning, displays of dissent.

The incident which occasioned the statute's enactment indicates, ifanything, how little the issues have changed in the course of two centu-ries. The late 1790s were marked by rising tensions between the U.S.Administration and a revolutionary government in France that had,among other things, taken captive American merchant ships and seamenand scandalously attempted to extort tribute from a U.S. diplomatic dele-gation (the so-called "XYZ affair"). 63 As the possibility of war loomedon the horizon, the governing Federalists put pressure upon the Frenchand upon domestic Republican oppositionists, whom the Federalists reg-ularly accused of collaborating with the enemy. 64 Among the resultswere the notorious Alien and Sedition Acts of 1798, which authorizedsummary arrest and deportation of "dangerous" aliens and punished theauthors of writings which defamed the U.S. Government.65

The deteriorating situation prompted a prominent Republican andQuaker, Dr. George Logan of Philadelphia, to journey to France to meetwith the revolutionary leadership. Logan pointedly disavowed any effortto negotiate on behalf of the United States. Rather, his objective was toinform the French leadership of views being expressed in the U.S. and tosuggest mutually beneficial measures that might defuse the crisis. 66 Per-haps sensing that a gesture to Logan afforded the opportunity to avertconfrontation while avoiding the appearance of capitulation, the Frenchresponded by releasing U.S. captives and taking other conciliatory ac-tion.67 The Federalists were far from grateful. Whether because

61. Kevin M. Kearney, Comment, Private Citizens in Foreign Affairs: A ConstitutionalAnalysis, 36 EMORY L.J. 285, 287, 303 (1987). See also Vagts, supra note 10, at 268; Smith,supra note 59 (commenting that "constitutional lawyers say [the Logan Act] has not beenenforced for at least a century").

62. See generally Kearney, supra note 61, at 303-06; Vagts, supra note 10, at 270-80.63. See Kearney, supra note 61, at 289-90.64. See id. at 290 (citing characterizations of the Jeffersonian Republicans as "revolution-

ary Jacobins treasonably allied with the foreign enemy to overthrow the Constitution and cutthe throats of true Americans").

65. Id. at 289-92.66. Id. at 293.67. Id.

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THE FIRST AMENDMENT

France's use of Logan's mission as a face-saving device vitiated an antici-pated international vindication of U.S. might and resolution,6 or becausethe mission's apparent success was politically beneficial to the Republi-cans,69 the Adams Administration initiated legislation to prevent anyrepetition of such independent diplomacy.70

From the Jeffersonian Republicans' point of view, the legislationwas, at best, a solution in search of a problem, 71 and at worst, a dema-gogic effort by the governing party to incite fear of, and to justify repres-sion against, the domestic opposition.72 Moreover, the Republicansargued, the statute was "drawn in the loosest possible manner; and wantsthat precision and correctness which ought always to characterize a pe-nal law."'73 The Republicans nonetheless did not repeal the Logan Act74

when they became the ruling party, and, like numerous subsequent rulingfactions, they themselves invoked the Logan Act rhetorically.75

The history of the Logan Act has been marked by sound and fury,but no actual enforcement.76 The only indictment ever issued under theLogan Act occurred, oddly enough, in response to an 1803 newspaperarticle (apparently, an "indirect" communication with a foreign govern-ment) proposing the creation of an independent nation in the AmericanWest, allied to France.77 The prosecution was pursued no further.78

During the Civil War, a federal judge in Massachusetts issued a grandjury charge calling attention to a British parliamentarian's declaration"that he had received many letters from the Northern states of America,urging Parliament to acknowledge the independence of the Southern

68. Logan was criticized for "proclaiming to the enemy the division of [his] country."Kearney, supra note 61, at 296 (quoting 5 ANNALS OF CONG., 2500 (1798)).

69. President Adams characterized Logan's goal as "to do or obtain something whichmight give opportunity for the 'true American character to blaze forth in the approachingelections.' " Id. at 295 n.59.

70. Id. at 294-95.71. As one Republican legislator put it, an individual citizen has no reason to "be

ashamed or afraid to promote the peace of his country." Kearney, supra note 61, at 296.72. According to Republican Albert Gallatin, "It was only by raising such a clamour in

the country as this, that they could hope to get such measures as the alien and sedition lawsapproved by the people of the United States, or to believe that a standing army was necessary,not to repel an invasion, but, as it is now confessed, for the crushing of a faction at home." 5ANNALS OF CONG. 2514 (1798).

73. 5 ANNALS OF CONG. 2637 (1798) (statement of Albert Gallatin).74. Unlike the Alien and Sedition Acts, the Logan Act had no expiration date. See Kear-

ney, supra note 61, at 302.75. See Vagts, supra note 10, at 271-72. One instance under the Jeffersonians involved a

group of lawyers who provided the Spanish Government with an opinion on international law,relevant to ongoing U.S.-Spanish negotiations, that was at variance with the U.S. position. ASenate committee recommended prosecution, but nothing came of the incident.

76. See Kearney, supra note 61 and accompanying text.77. See Vagts, supra note 10, at 271.78. Id.

Springt 19931


Confederacy." '79 The court instructed that "if any such communicationhad been made by a citizen of the United States, it is a high misde-meanor."' 0 However, no indictments were issued.

Nonetheless, a 1964 federal district court opined in a private civilaction indirectly implicating the Logan Act that there is "no merit in[the] argument that the Logan Act has been abrogated by desuetude." 8

Quoting Shakespeare, the court maintained that "[tihe law hath not beendead, though it hath slept."82 The court did, however, call attention to"the existence of a doubtful question with regard to the constitutionalityof the statute under the Sixth Amendment"8 " because of the vagueness ofthe terms "defeat" and "measures." 4 The court "invite[d] Congres-sional attention to the possible need for amendment" of the Act to rem-edy this deficiency, 5 and noted that, in the meantime, any "ambiguityshould be resolved in favor of lenity."8 6 On the summary judgment mo-tion before it, the court held that United States policy on importation ofIranian oil in 1952 had not been "clearly and unequivocally deline-ated," 7 raising "an issue of material fact as to the existence and identityof 'the measures of the United States' " that plaintiff was alleged to haveintended to defeat by its communications with the Iranian authorities.88

Constitutionality concerns have apparently helped to deter annoyedadministrations from pursuing Logan Act prosecutions against opposi-tionists who have carried on public discourse with adverse governmentsabroad. In 1967, President Johnson was reportedly intent on a LoganAct prosecution of radical civil rights leader Stokely Carmichael, whohad travelled to Hanoi and denounced the Administration's VietnamWar policy. 9 When Attorney General Ramsey Clark protested that theprosecution would be unconstitutional, Johnson turned to the State De-

79. Charge to Grand Jury - Treason & Privacy, 30 F. Cas. 1049, 1051 (C.C.D.Mass.1861) (No. 18,277).

80. Id.81. Waldron v. British Petroleum Co., 231 F. Supp. 72, 89 n.30 (S.D.N.Y. 1964).82. Id. (quoting WILLIAM SHAKESPEARE, MEASURE FOR MEASURE act 2, sc. 2).83. Id. at 89. The Sixth Amendment provides: "In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury of the State and districtwherein the crime shall have been committed, which district shall have been previously ascer-tained by law, and to be informed of the nature and cause of the accusation; to be confrontedwith the witnesses against him; to have compulsory process for obtaining witnesses in hisfavor, and to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI.

84. Waldron, 231 F. Supp. at 89 ("Neither of these words is an abstraction of commoncertainty or possesses a definite statutory or judicial definition.").

85. Id. at 89 n.30.86. Id. (quoting Bell v. United States, 349 U.S. 81, 83 (1955)).87. Waldron, 231 F. Supp. at 88.88. Id. at 88-89.89. Lewin, supra note 59, at 17.

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partment's legal staff to develop a basis for prosecution.' The author ofthe resulting proposal later characterized his theories as "acceptable butshaky," adding that "in retrospect, it is clear now that it would have beenfoolish and unsound prosecutorial policy to have filed criminal chargesagainst Carmichael."9 Against the President's strong wishes, AttorneyGeneral Clark refused to go forward. Ironically, that resolute stance setan internal precedent that probably helped to protect Clark himself fromprosecution when he infuriated the Carter Administration by travellingto Tehran to discuss the hostage crisis in 1980.92

Another Logan Act prosecution was threatened but not pursuedwhen the Reverend Jesse Jackson travelled to Cuba and Nicaragua in1984, returning with 26 released Cuban political prisoners.93 Tellingly,no mention of the Logan Act had been made previously when Jacksonhad travelled to Syria and obtained the release of Lieutenant RobertGoodman.94 The difference was that the earlier Jackson trip, by provid-ing the Syrian leadership with an opportunity to release the capturedAmerican military flier without appearing to capitulate, had extricatedthe Reagan Administration from an embarrassing deadlock. In contrast,that Administration had had no interest in the results of the Cuba trip,however tangible its benefits and speculative its costs. 95 In any event, anAdministration official was quoted as saying privately, "I don't thinkyou'd find any government lawyer who would want to stand up in courtand try to make a case that Jackson has violated the law. "96

Nonetheless, the Logan Act looms. The most recent judicial refer-ence to the Act appears in the dissent to a 1980 District of ColumbiaCircuit decision that ordered restoration of the passport of Philip Agee, aformer CIA agent who was notorious for divulging the identities of CIAagents working covertly abroad.97 Judge MacKinnon's dissent cited withapproval a draft of a Logan Act indictment against Agee regarding thelatter's December 1979 communications with Iranians who were respon-sible for the takeover of the American Embassy in Tehran and the hold-

90. Id.91. Id.92. Id. at 17-18.93. Smith, supra note 59.94. Daniel Schribman, Jackson Pressing Syrian Trip Plans, N.Y. TIMEs, Dec. 29, 1983, at

AlO.95. The New York Times, while opposing prosecution, echoed the Administration's atti-

tude by quoting with approval the words of a released Cuban poet: "To go to Cuba to join in amoral offensive with Fidel Castro is more than morally offensive, it is a moral offense." Mr.Jackson's Prisoner Dealing, N.Y. TIMES, July 6, 1984, at A22.

96. Smith, supra note 59 (referring to how Jackson's actions have complicated Americandiplomacy).

97. Agee v. Muskie, 629 F.2d 80, 87 (D.C. Cir. 1980) (MacKinnon, J., dissenting), rev'dsub nom. Haig v. Agee, 453 U.S. 280 (1981).

St~rn2 19931 THE FIRST AMENDMENT


ing of fifty-three American hostages.9" The draft indictment chargedthat Agee had violated the Act by "counselling, and suggesting to" thehostage-takers

that they could prevail in their unlawful demands... by forc-ing the United States ... by extortion, to deliver into [their]possession... all records of the [CIA] on CIA intelligence op-erations in Iran for the past 30 years, in return for the releaseby said Iranian Terrorists of upwards of 50 citizens . . . thenbeing threatened with execution and being unlawfully held

"499

The indictment was never actually procured.Agee's provocative stance and the criminality inherent in the actions

of those with whom he communicated may tend to obscure the sweepingimplications of the interpretation of the law as embodied in the draftindictment. First, it is clear beyond cavil that Agee was not purportingin these discussions to represent the United States, nor to represent anypolitical formation capable of imminently coming to power in the UnitedStates. " The oft-cited concern about the nation "speaking with onevoice'" 0 1 is not seriously implicated by the actions of an isolated inter-meddler. Second, the draft indictment does not indicate that Agee of-fered the Iranians anything of value so as to "influence" them under arestrictive interpretation of that term."°2 He is alleged to have "influ-enced" the Iranians, if at all, by "counselling" or "suggesting" a courseof action-in other words, by sharing ideas with a foreign government. 103

Arguably, he could as easily have accomplished this goal by publishingan opinion article in a United States newspaper. Third, the contentionthat Agee intended "to defeat the measures of the United States" is not

98. Agee, 629 F.2d at 113 n. 70 (MacKinnon, J., dissenting).99. Id. The hostage takers were deemed to constitute a foreign government as defined by

18 U.S.C. § 11 (1988). The term "foreign government," under the statute, "includes any gov-ernment, faction, or body of insurgents within a country with which the United States is atpeace, irrespective of recognition by the United States."

100. Such a misrepresentation would, in any event, be prohibited by a separate statutewhich contains none of the vagueness or overbreadth problems presented by the Logan Act.See 18 U.S.C. § 954 (1988) (false statements influencing foreign government).

101. See, e.g., Vagts, supra note 10, at 269 (citing United States v. Pink, 315 U.S. 203, 242(1942) (Frankfurter, J., concurring)). See also 106 CONG. REC. 8625-26 (1960) (statement ofSenator Fulbright regarding Logan Act).

102. It is not inconceivable that the indictment could have charged something much nar-rower and more compelling. Agee was quoted in The New York Times as having told theIranians that he would "not become involved in identifying CIA personnel or in analyzingdocuments until after all the hostages [were] released." Agee, 629 F.2d at 112 n.68. This canbe interpreted as offering the Iranians a specialized quid pro quo (very different from merefavorable mention or political support), something the U.S. Government arguably has a com-pelling interest in preventing. The draft indictment, however, made no reference to thisstatement.

103. Agee, 629 F.2d at 113 n.70.

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tied to any enumerated "measures." The phrase "measures of the UnitedStates" must thus be understood in some broader sense. Yet Agee wasplausibly attempting not to defeat the nation's measures, but rather, toserve the nation's purposes by effecting a quick release of the hostages atan acceptable cost. If the meaning of "intent to defeat the measures" isneither enumerated nor obvious, it risks being manipulable.

Although foreign policy activists are rarely as provocative as PhilipAgee, many regularly communicate with representatives of foreign gov-ernments with which the United States Administration is engaged in dis-putes. For such activists, the draft indictment brandished against Agee isa chilling reminder of their vulnerability to Logan Act prosecution. It isnot unusual to "counsel" or make "suggestions" to representatives of aforeign government in the hope of influencing that government's conductvis-a-vis disputes with the United States. It is even possible that an ac-tivist might suggest strategies for outflanking United States policymak-ers, whose positions the activist might reasonably regard asobstructionist and inconsistent with our nation's true interests and moralstandards." The Logan Act raises the prospect that mere contributionof ideas constitutes an indictable offense, especially where their persua-sive power might tend to frustrate policies being pursued at any givenmoment by U.S. officials, whether or not those policies are enumerated inauthoritative policy statements.

C. Travel Restrictions

1. Passport Denial and Revocation

At least until recently, another potential weapon, complementary tothe Logan Act, for an administration seeking to clamp down on foreignaffairs activism abroad has been the denial or revocation of an activist'spassport. Regulations promulgated by the Secretary of State provide forsuch denial where "[tjhe Secretary determines that the national's activi-ties abroad are causing or are likely to cause serious damage to the na-tional security or the foreign policy of the United States."' 0 5 Unlike theLogan Act, passport revocation regulations have actually been enforced,prompting the Supreme Court to pass on the regulations in Haig v.

104. It is possible that in the 1980s, some activists advised representatives of the Nicara-guan Government not to make certain concessions to the Reagan Administration, on the the-ory that the Administration would only be encouraged to "up the ante" and avoid resolutionof the conflict. Unquestionably, activists communicated to the Nicaraguans a variety of viewsregarding specific Administration demands.

105. 22 C.F.R. § 51.70(bX4) (1993) (emphasis added) (passport may be denied by Secre-tary of State). See also 22 C.F.R. § 51.72(a) (1993) (a passport may be revoked when thenational would not be entitled to issuance of a new passport under § 51.70).

SDrin 1993] THE FIRST AMENDMENT


Agee.10

6

The Agee decision turned on the existence vel non of an implied dele-gation of Congressional authority to the Executive to promulgate suchregulations.'07 The Court held that Congressional acquiescence in a sub-stantial and consistent administrative policy articulation, even withoutacquiescence in actual administrative enforcement, was sufficient to es-tablish the existence of a delegation. 08 Yet the separation-of-powers as-pect of the case, while significant, is hardly the most interesting orconsequential problem raised by the regulations. Dwelling on Agee'spropensity to divulge sensitive information regarding CIA activities andoperatives, the Court glossed over, sidestepped, or completely ignoredeach of the serious First Amendment problems that appear on the face ofthe regulations. 'I

First, the Court began its truncated First Amendment discussionwith the words, "[a]ssuming, arguendo, that First Amendment protec-tions reach beyond our national boundaries .... "110 It thereby refused tocommit itself to the principle that the First Amendment protects Ameri-cans wishing to speak abroad from censorship by their own govern-ment.I" (This refusal perhaps indicates that the Logan Act has morevitality than even its protagonists have imagined.)

Second, whatever the implication from the Court's noncommittalstance on the threshold issue, there can be little question that the Courtsubstantively diluted any First Amendment protection by characterizingthe passport revocation-justified on the basis of what Agee might sayabroad-as "an inhibition of action [i.e., of foreign travel], rather thanspeech.""' 2 The Court elaborated that "Agee is as free to criticize theUnited States Government as he was when he held a passport"' 13-a

106. 453 U.S. 280 (1981).107. Id108. Id at 306. What the Court actually said was: "[We hold that the policy announced

in the challenged regulations is 'sufficiently substantial' and consistent to compel the conclu-sion that Congress has approved it." Id. (quoting Zemel v. Rusk, 381 U.S. 1, 12 (1965)).

109. Agee, 453 U.S. at 308.110. Id.111. This issue is distinguishable from whether a person's liberty to travel may constitu-

tionally be deprived on the basis of that person's views or organizational affiliations. SeeAptheker v. Secretary of State, 378 U.S. 500, 511 (1964) (holding that the challenged statute,§ 6 of the Subversive Activities Control Act of 1950, unconstitutionally "establishes an irrebut-table presumption that individuals who are members of specified organizations will, if givenpassports, engage in activities inimical to the security of the United States").

112. Agee, 453 U.S. at 309 (quoting Zemel, 381 U.S. at 16-17). This characterization isbased on a similar but distinct point made in Zemel to the effect that a ban on travel to Cuba is"an inhibition of action" not speech. Id That ban, however, did not openly discriminateagainst individuals based on their expression, and was not openly intended to prevent speechabroad.

113. Agee, 453 U.S. at 309.

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aTHE FIRST AMENDMENT

point that one would have imagined to be beneath refutation, since thesame could cynically be said of one imprisoned for political speech. 14

This language, on its face, implies that the Court did not rule that Agee'sFirst Amendment interest in making statements abroad was outweighedby national security considerations, but rather that Agee had no suchFirst Amendment interest.

Third, the Court held "that since Agee's conduct falls within thecore of the regulation, Agee lacks standing to contend that the regulationis vague and overbroad. '""5 Whatever the procedural merits of thisholding, its consequence was to leave the door open to passport revoca-tion wherever the Secretary of State determines that the holder's "activi-ties abroad ... are likely to cause serious damage" either to the nationalsecurity or to United States foreign policy." 6 It is far from clear that anordinary citizen wishing to retain the liberty to travel abroad, by readingthis regulation, has "a reasonable opportunity to know what is prohib-ited, so he may act accordingly.""' 7 Since the delegation of Congres-sional power was founded on the basis of acquiescence in the consistentarticulation (rather than in the consistent enforcement) of the standards,a broad application would seem unlikely to be struck down as beyond thescope of Congress's implicit delegation.

Finally, while recognizing that Agee had a due process interest inthe liberty to travel abroad, the Court denied the necessity of a prerevo-cation hearing: "The Constitution's due process guarantees call for nomore than what has been accorded here: a statement of reasons and anopportunity for a prompt postrevocation hearing."118 In a footnote, theCourt expressly left open the question of whether even these are constitu-tionally required.' ' Assuming that some hearing is required, the Courtdid not indicate what substantive standard might govern the proceedings.The regulations appear to leave the determination of "likelihood to causeserious damage" to the sole discretion of the Secretary of State. TheCourt's disposition to review the reasonableness of such a determinationmay plausibly be gauged by its observation that "matters relating 'to theconduct of foreign relations ... are so exclusively entrusted to the polit-ical branches of government as to be largely immune from judicial in-

114. "After all, the individual would remain free to criticize the United States Govern-ment, albeit from a jail cell." Agee, 453 U.S. at 320 n. 10 (Brennan, J., dissenting).

115. Agee, 453 U.S. at 309 n.61 (citing Parker v. Levy, 417 U.S. 733, 755-56 (1974)).Justice Brennan vigorously dissented from this rendition of the standing doctrine. Agee, 453U.S. at 321 n.10 (citing Gooding v. Wilson, 405 U.S. 518, 520-21 (1972)).

116. 22 C.F.R. § 51.70(b)(4) (1993).117. Grayned v. Rockford, 408 U.S. 104, 108 (1972).118. Agee, 453 U.S. at 310.119. Id. at 310 n.62.

Spring 1993] THE FIRST AMENDMENT


quiry or interference.' ""20In 1991, in a direct, if delayed, reaction to the breadth of executive

and judicial pronouncements in Agee, Congress specified impermissiblebases for the exercise of the State Department's authority to deny, revokeor restrict passports: these include "any speech, activity, belief, affilia-tion, or membership, within or outside the United States, which, if heldor conducted within the United States, would be protected by the [F]irst[A]mendment. . "..", Although administrative regulations still permitpassport denial and revocation where "the Secretary determines that thenational's activities abroad are causing or are likely to cause serious dam-age to the national security or the foreign policy of the United States,"'' 22

the new statute, in the words of the House Report, "clarifies that...[F]irst [A]mendment activities alone do not constitute serious damage tothe national security or foreign policy of the United States. 1 ,23

The new statute has yet to be subjected to judicial interpretation.Although the statutory language and the legislative report might seemsufficiently straightforward to put the matter to rest,124 the effectivenessof the new legislation rests on the judiciary's determination of what activ-ities, "if held or conducted within the United States, would be protectedby the [F]irst [A]mendment," i.e., of what constitute "[F]irst[A]mendment activities alone." A court of the Agee mindset may seespeech running afoul of FARA or the Logan Act, for example, as fallingoutside of First Amendment protections; it may also defer readily to anyallegation by the Secretary of non-protected acts, without requiring proofof their occurrence or persuasive arguments as to their significance. 25

Viewed optimistically, the new legislation on passport denial and revoca-tion removes from the Executive one means of restricting the liberty offoreign affairs activists to travel abroad. Yet the Executive has at its dis-

120. Id. at 292 (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952)).121. 22 U.S.C. § 2721 (1992).122. 22 C.F.R. § 51.70(b)(4) (1993) (denial); 22 C.F.R. § 51.72(a) (1993) (revocation).123. H.R. REP. No. 53 and H.R. CONF. REP. No. 138, supra note 7, reprinted in 1991

U.S.S.C.A.N. at 401-02. The House Report made express reference to Agee in explaining theneed to "clarify" Congressional intent. H.R. REP. No. 53, supra note 7, reprinted in 1991U.S.S.C.A.N. at 401-02.

124. The legislative history unmistakably supports a civil libertarian interpretation. TheHouse Report evinces disapproval of repeated Executive attempts to find bases for restrictingtravel: "Despite the fact that Congress has repeatedly and consistently acted to facilitate theinternational freedom of movement, the executive branch has repeatedly frustrated this policyby limiting it administratively ... and even asserts the authority to deny, revoke, and restrictpassports on the basis of speech." Id.

125. As an example of just this kind of judicial deference, see infra note 143 and accom-panying text, for a discussion of the ruling in Kleindienst v. Mandel, 408 U.S. 753, 770 (1972),which permitted the Secretary to exclude foreign visitors merely by giving a "facially legiti-mate reason."

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posal a more sweeping power by which it can accomplish a similar end:restrictions on all travel by U.S. nationals to specified countries.

2. Geographic Restrictions

The Executive has from time to time used a variety of devices to bartravel to a handful of countries considered adverse to the United States.Originally, this was done through the restriction of the validity of pass-ports to exclude certain countries, and later has been accomplished byway of economic measures under the Trading with the Enemies Act' 26

and the International Emergency Economic Powers Act.127

The Supreme Court upheld Executive action of this type in Zemel v.Rusk, 2 ' a 1965 case involving a ban on travel to Cuba effectuatedthrough the restriction of passport validity. 129 Zemel challenged the banas "a direct interference with the First Amendment rights of citizens totravel abroad so that they might acquaint themselves at first hand withthe effects abroad of our Government's policies, foreign and domestic,and with the conditions abroad which might affect such policies." 130 TheCourt conceded that concern for the free flow of information underliesthe constitutional protection of foreign travel as a liberty interest underthe Due Process Clause, but denied that the travel ban's "inhibition ofaction" constituted a First Amendment issue.' 31 "The right to speak andpublish," held the Court, "does not carry with it the unrestrained right togather information."' 13 2

The Zemel Court thus did not bother to justify the restriction asnarrowly tailored to serve a compelling interest. It did point out that "inthe early days of the Castro regime, United States citizens were arrestedand imprisoned without charges,"' 33 and found the Secretary of State tohave "justifiably concluded that travel to Cuba by American citizensmight involve the Nation in dangerous international incidents."' 34 TheCourt has since characterized the Zemel holding as "merely an exampleof [the] classical deference to the political branches in matters of foreign

126. 50 U.S.C. App. § 5(b) (1988).127. 50 U.S.C. §§ 1701-06 (1988).128. 381 U.S. 1 (1965).129. A similar ban on travel to Cuba is currently in effect as part of the economic em-

bargo against Cuba, and has similarly been upheld as falling within the statutory authority andthe Constitution. See Regan v. Wald, 468 U.S. 222 (1984) (Four justices dissented, but solelyon statutory interpretation grounds).

130. Zemel, 381 U.S. at 15.131. Id.132. Id. at 17.133. Id. at 15.134. Id.

So~ring 19931 THE FIRST AMENDMENT


policy"' 35 and has assigned no significance to the intervening diminutionof any risk of an international incident arising as a result of travel by U.S.citizens to Cuba.' 36 The current ban is justified as a means of deprivingan adverse regime of hard currency that would be spent by U.S. travelers.

The current regulations allow for a number of exemptions, the verynarrowness of which conveys a certain hostility to private informationgathering. A "general license" is granted to U.S. Government officials,persons with close relatives in Cuba, and "persons who are traveling forthe purpose of gathering news, making news or documentary films, en-gaging in professional research, . . . or similar activities."' 37 "Profes-sional research and similar activities" are elaborated and tightlycircumscribed; "[s]tudy visits to Cuba in connection with pre-college orundergraduate college course work," "general study tours," "studentclass field trips," and "research for personal satisfaction only" arebarred, as is engaging in any activities supplemental to professional re-search "in excess of that consistent with a full work schedule.'" 38 Only"full-time professionals" doing research "specifically related to Cuba"with "a substantial likelihood of dissemination of the product of suchresearch" are eligible.' 39 Because the penalty for "willful" violation is upto ten years in prison and a $100,000 fine, '40 uncertainty as to the author-itative interpretation might chill even a bona fide professional researcher.

Travel restrictions of this nature provide the Executive with a greatopportunity to limit the sources of information on a subject of U.S. for-eign policy, precluding a grassroots educational campaign of the sort un-dertaken by thousands of U.S. travelers returning from Nicaragua in the1980s. They also give an Administration an opportunity to prevent thetype of international activism that took place in Nicaragua, such ashuman rights monitoring of the war zones undertaken by the Witness forPeace organization, or provision of skills and material aid undertaken bya plethora of groups seeking to help Nicaraguans endure the U.S. eco-nomic embargo and the U.S.-sponsored counterrevolutionary insur-gency. It is, indeed, surprising that the Reagan Administration did not

135. Regan, 468 U.S. at 242.136. Id.137. 31 C.F.R. § 515.560(a)(1) (1993).138. 31 C.F.R. § 515.416(a)(2), (b) (1993).139. 31 C.F.R. § 515.416(a)(1) (1993). The provision governing "specific licenses," how-

ever, has recently been broadened to authorize their issuance, "in appropriate cases," for"clearly defined educational or religious activities, for activities of recognized human rightsorganizations ... or for purposes related to the export, import, or transmission of informationor informational materials." 31 C.F.R. § 515.560(b) (1993), 58 Fed. Reg. 34,711 (June 29,1993). It is unclear what cases will be deemed "appropriate."

140. 31 C.F.R. § 515.701 (1993). See also 31 C.F.R. § 515.417(b), (c) (1993), 58 Fed.Reg. 34,710 (June 29, 1993).

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employ such a device with respect to Nicaragua; its failure to do so seemsto have been the result of political, rather than legal, considerations.

D. Exclusion of Foreign Political Figures

For those who cannot gain direct access to foreign viewpoints bytravelling abroad on a regular basis, visits to the United States by foreignpolitical figures provide an important source of timely information onforeign policy issues. Foreign officials are uniquely situated to respond tothe U.S. media's reporting of often-unanswered charges against theirgovernments. They, as well as non-official foreigners active in politics,can explain a point of view that may be systematically ignored or dispar-aged in American political discourse. Yet precisely because such personsare "going over the head" of the Administration to make their case to theAmerican people, the Executive has often had occasion to exercise itssweeping visa powers to exclude foreign political figures. Recent reformshave eliminated the patently offensive "ideological exclusions" from theenabling statute,1 41 but continue to vest in the Executive considerableleeway to exclude purveyors of unwelcome expression.

Under the former statutory scheme, a would-be foreign visitor whoadvocated revolutionary or Communist ideas or was an affiliate of aCommunist-oriented organization, or whose presence in the UnitedStates was viewed by a consular official as "prejudicial to the public inter-est," fell into a category of excludable aliens and had to seek from theSecretary of State a discretionary waiver of excludability.142 In Klein-dienst v. Mandel,'43 where citizens wishing to meet and exchange viewswith a visitor challenged the waiver denial on First Amendment grounds,the Supreme Court held that

when the Executive exercises [the power to deny a waiver] onthe basis of a facially legitimate and bona fide reason, the courtswill neither look behind the exercise of that discretion, nor testit by balancing its justification against the [conceded] FirstAmendment interests of those who seek personal communica-tion with the applicant.1"

The Court expressly declined to reach the question of whether, in theabsence of any proffered justification, the denial was subject to attack on

141. 8 U.S.C. § l182(a)(3)(D) (1993) limits the long-standing discrimination againstmembers of "totalitarian" parties to immigrant aliens rather than visitors.

142. Former 8 U.S.C. § 1182(a)(27)-(28), (d)(3) (1988).143. 408 U.S. 753 (1972).144. Id. at 770. The Court failed to explain how courts can determine whether the prof-

fered reason is bona fide if they do not look behind it. The proffered reason in Mandel, as thedissents pointed out, was not well substantiated; Mandel had previously violated visa condi-tions of which he had apparently not been informed, and the violation had consisted of speak-ing at too many universities. Id. at 773-74 n.4 (Douglas, J., dissenting).

Spring 19931 THE FIRST AMENDMENT


First Amendment or other grounds. In practice, waivers were oftendenied. 145

As of 1990, amendments have restructured the statutory schemegoverning excludability of foreign visitors, abolishing ideological exclu-sion but retaining exclusions relating to foreign policy and terrorism.The reform in this area has been markedly less sweeping than that under-taken with respect to passport revocation; whereas the latter sought toeliminate Executive actions based on expression, association or belief, thenew alien exclusion statute continues to allow exclusion on these bases.

The foreign policy exclusion applies where the Secretary has "rea-sonable ground to believe" that the alien's entry or proposed activities"would have potentially serious adverse foreign policy consequences."' 46

The alien's "past, current, or expected beliefs, statements, or associa-tions," if they would be lawful within the United States, cannot be thesole basis for excluding foreign officials or political candidates, and can-not be the basis for the exclusion of other aliens "unless the Secretary ofState personally determines that the alien's admission would compromisea compelling United States foreign policy"' 47 and notifies Congressionalcommittees accordingly. The section leaves unclear, if not confused, theextent to which the courts may second-guess the Secretary's judgment;"reasonableness" appears as a standard in assessing "potentially seriousforeign policy consequences"1 48 where advocacy and association are notcited as the sole grounds for exclusion, but no such standard is men-tioned with respect to the Secretary's certified personal judgment of acompelling interest where advocacy and association are so cited. 9

The terrorism exclusion appears tightly drawn to limit coverage toanticipated or past direct involvement in violent activity,' 50 but doesleave room for questionable exclusions. First, the exclusion applies to analien who "has engaged in a terrorist activity" without regard to the pe-

145. The 1977 McGovern Amendment mildly reformed the exclusion provisions to re-quire, consistent with the Helsinki Final Act of 1975, that an alien not be excluded solely onthe basis of organizational membership or affiliation unless the Secretary certified to Congressthat admission of the alien "would be contrary to the security interests of the United States."Pub. L. No. 95-105, 1977 U.S.C.C.A.N. (91 Stat.) 848. See Abourezk v. Reagan, 785 F.2d1043, 1053-60 (D.C. Cir. 1986), affid mem. 484 U.S. 1 (1987) (3-3 decision), appeal after rem.sub nom. City of New York v. Baker, 878 F.2d 507 reh'g denied, 888 F.2d 134 (D.C. Cir.1989). This Amendment itself became riddled with exceptions. See former 22 U.S.C.§ 2691(b) (non-application to representatives of state-controlled labor organizations), (c) (non-application to the Palestine Liberation Organization), and (d) (non-application where alien'scountry not in substantial compliance with Helsinki Final Act) (repealed 1990).

146. 8 U.S.C. § 1182(a)(3)(C)(i) (1993).147. Id.148. Id.149. 8 U.S.C. § l182(a)(3)(C)(iii) (1993).150. 8 U.S.C. § 1182(a)(3)(B) (1993).

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riod of time in which the person was engaged in such activity. FormerIsraeli Prime Minister Yitzhak Shamir is apparently excludable for hisactivities in the 1940s. "" Second, although the elaborations of "affordingmaterial support to any individual, organization, or government in con-ducting a terrorist activity" seem not to include routine association withan organization involved in armed civil conflict, it is not clear how therelevant clauses will be interpreted. 152 Third, the statute eliminates thenecessity of proving engagement in terrorist activities vis-a-vis one organ-ization, the Palestine Liberation Organization (PLO). As the statutestates, "An alien who is an officer, official, representative, or spokesmanof the Palestine Liberation Organization is considered, for purposes ofthis chapter, to be engaged in a terrorist activity." '53 This irrebuttablepresumption calls into question the drafters' seriousness about eradicat-ing exclusions based on advocacy and association. 154

The extent to which the restructuring of the exclusion statute will

151. See generally Jackson Diehl, Israel's Shamir Riding Seesaw of Change, WASH. POST,Oct. 26, 1991, at A3; Glenn Frankel, Israel's Plucky Politician: Once an Outcast, Shamir GainsWide Appeal, WASH. POST, Oct. 16, 1988, at Al. See also A. PERLMUTrER, ISRAEL, THE

PARTITIONED STATE 80-89 (1985) (describing Jewish underground military groups inPalestine).

152. "Affording material support" includes providing funds "to any individual the actorknows or has reason to believe has committed or plans to commit a terrorist activity," andsoliciting "any individual for membership in a terrorist organization [or] terrorist govern-ment." 8 U.S.C. § 1182 (a)(3)(B)(iii) (1993). "Terrorist government" and "terrorist organiza-tion" are undefined; if they refer to any government or organization, any part of which hasever engaged in terrorism, then a great many governments and national liberation movementsare included (as the U.S. itself would be).

According to press reports, the Immigration and Naturalization Service has taken theposition in a pending case that the statute authorizes deportation of resident aliens who raisedfunds for the Popular Front for the Liberation of Palestine, even if that fundraising supportedonly the organization's non-violent activities. Sixty professors of immigration law have report-edly protested to the Attorney General, pointing out that this interpretation contradicts thestatutory language. Anthony Lewis, Cause for Justice, N.Y. TIMEs, September 20, 1993, atA13.

153. 8 U.S.C. § 1182(a)(3)(B)(i) (1993).154. The denial of a waiver for a PLO official under the prior statutory scheme was chal-

lenged in Harvard Law Sch. Forum v. Shultz, 633 F. Supp. 525 (D. Mass. 1986), vac'd onground of mootness, 852 F.2d 563 (1st Cir. 1986). The State Department had denied permis-sion for the PLO's Permanent Observer to the United Nations to travel to Massachusetts(outside the zone delimited to accommodate his UN activities) to publicly debate a well-knownadvocate of the Israeli cause. The Secretary, having previously granted the PLO official travelpermission for vacations and other personal activities, justified the denial on the ground thatthe official's participation in a debate with American citizens would undermine the U.S. policyof denying legitimacy to the PLO. The district court held that this justification, being "di-rectly related to the suppression of a political debate with American citizens," failed the Klein-dienst v. Mandel test of facial legitimacy in light of First Amendment considerations. Schultz,633 F. Supp. at 531. (The district court granted a preliminary injunction, which was stayed bythe First Circuit; the case subsequently became moot without any further opinion issuing.)

In the wake of the recent Israel-PLO peace accords, it is anticipated that the currentstatute will be modified to ease or eliminate discrimination against the PLO.

SvrinR 19931 THE FIRST AMENDMENT


effectively operate to prevent the Executive from impeding Americans'access to foreign political figures remains to be seen. The recent amend-ments were more an attempt to purge the exclusion statute of McCarthy-ite prejudice (notwithstanding the continuing restriction on immigrationby current or recent members of Communist organizations) than an ef-fort to protect from zealous defenders of the foreign policy status quo theFirst Amendment interests championed by the dissenting justices inKleindienst."' It is only by interpreting the statute with full regard forFirst Amendment concerns that the court will be able to protect the freeflow of information from Executive efforts to exclude dissonant voices.

In summary, the current pattern of legislation and regulation in theforeign affairs realm suggests no less than four areas where the constitu-tional values taken for granted in domestic discourse are compromised:the Foreign Agents Registration Act; the Logan Act; travel restrictions;and exclusion of foreign political figures. To promote democratic deci-sionmaking and popular participation in the foreign affairs realm, the lawin these areas must be "domesticated"-that is, must be brought intoconformity with the constitutional principles prevalent in the domesticrealm. This can be done without compromising any of the vital intereststhat the offending legislation and regulation purport to uphold.

III. CITIZEN PARTICIPATION IN FOREIGN AFFAIRS AND THE FIRST

AMENDMENT

The past two years have seen two significant steps toward eliminat-ing the anomalous deprecation of First Amendment liberty in the foreignaffairs realm. The first, as discussed above, was the 1991 passage of legis-lation eliminating the Executive's authority to deny or revoke passportson the basis of speech, association or belief.'56 Much better than the1990 reform to the alien exclusion statute, the new passport revocationsection, amplified by its accompanying House Report, straightforwardlyembodies the premise that the First Amendment is fully operative in theforeign affairs realm. What remains is for this principle to be generalizedto all statutory and regulatory schemes affecting citizen participation inforeign affairs.

The second step occurred in 1992 when, after a fifteen-year delay,the Senate gave its advice and consent to the International Covenant onCivil and Political Rights (International Covenant),' 57 which contains

155. 408 U.S. 753, 770-74 (1992) (Douglas, J., dissenting); Id. at 774-85 (Marshall, J.,dissenting).

156. 22 U.S.C. § 2721 (1992).157. International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S.

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SDring 19931]H IS MNMN

expansive language regarding freedom of expression across nationalboundaries. Although non-self-executing, the Covenant commits theUnited States to eliminating the present impediments to the interactionsof politically active Americans with foreigners.

Article 19(2) of the Covenant provides as follows: "Everyone shallhave the right to freedom of expression: this right shall include freedomto seek, receive and impart information and ideas of all kinds, regardlessof frontiers, either orally, in writing or in print, in the form of art, orthrough any other media of his choice." ' None of these freedoms isabsolute. The Covenant, like First Amendment jurisprudence, places re-strictions on these freedoms, but "only. . . such as are... necessary" toprotect "the rights or reputations of others," "national security," "publicorder," and "public health and morals."15 9

At least in the realm of domestic affairs, U.S. courts apply strictscrutiny to serve the precise purposes set forth in Article 19.16' Despitethe use of such a standard, the "regardless of frontiers" requirement goeslargely unfulfilled. This is the result of a deferential judicial attitude re-garding foreign affairs that fails to take account of the contemporary re-quirements of citizen participation. To satisfy Article 19, as well as toserve the fundamental purposes of the First Amendment, the governmen-tal power unleashed by this judicial deference must be "domesticated."Only in this way can the fundamental purposes of the First Amendmentbe served.

In Haig v. Agee the Supreme Court reiterated the principle, enunci-ated in Harisiades v. Shaughnessy, that "the conduct of foreign relations,the war power, and the maintenance of a republican form of governmentare so exclusively entrusted to the political branches of government as tobe largely immune from judicial inquiry or interference."'' That theCourt should favorably recall Harisiades, a 1952 decision upholding thedeportation of resident aliens whose only fault had been prior member-ship in the Communist Party at a time when such membership had beenlawful and unregulated, casts a pall over the prospects for judicial protec-tion of First Amendment rights in the foreign affairs realm. "Certainly

158. Id. at 178 (emphasis added). Article 20 qualifies Article 19 by barring "propagandafor war" and "advocacy of national, racial or religious hatred that constitutes incitement todiscrimination, hostility or violence." Id.

159. Id., art. 19(3), 999 U.N.T.S. at 178.160. See, e.g., NAACP v. Button, 371 U.S. 415 (1963). The Court declared that "only a

compelling [governmental] interest in the regulation of a subject within [governmental] consti-tutional power to regulate can justify limiting First Amendment freedoms." Id. at 438. AccordR.A.V. v. City of St. Paul, Minnesota, 112 S. Ct. 2583 (1992); Simon & Schuster, Inc. v. NewYork Crime Victims Board, 112 S. Ct. 501 (1991); Boos v. Barry, 485 U.S. 312 (1988); Arkan-sas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987).

161. Agee, 453 U.S. at 292 (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952)).

Sofing 1993] THE FIRST AMENDMENT

no responsible American," opined the Harisiades Court, "would say thatthere were [in 1940] or are now no possible grounds on which Congressmight believe that Communists in our midst are inimical to our secur-ity.9 '62 In Harisiades, First Amendment concerns did not suffice toheighten the level of scrutiny, in part because advocacy of change "byforce and violence" did not, under the jurisprudence of that era, consti-tute protected expression.163

Although there is no indication that the Agee Court intended, by itsHarisiades reference, to turn back the clock on First Amendment law topre-Brandenburg standards, 4 it did intend to reassert a deference to thepolitical branches 65 that has severe First Amendment consequences.Those consequences arise out of a confusion over what can constitute acompelling, or even legitimate, foreign policy interest in limiting speechor speech-related conduct.

The political branches of government have a cognizable interest inprecluding interference with the conduct offoreign policy, but not in pre-cluding interference with the perpetuation of foreign policies. Under ademocratic system of government, neither the Executive nor Congress isprivileged to take measures (other than rebuttal) to prevent the Ameri-can public from being persuaded that current policies are unwise or un-just, no matter how convinced those branches may be of the importanceof those policies to national interests or national security. Our Constitu-tion does not envisage a "protected democracy," a la Pinochet, in whichthe citizenry is saved from the consequences of its own "irresponsibility."Neither does the Constitution envisage a form of "democratic central-ism," a la Lenin, in which dissenters from decisions taken internally areforbidden to seek to frustrate those decisions by appealing, through rea-son and persuasion, to outsiders (or by undertaking humanitarian effortsto undo harms to foreign civilians).' 66 Adherence to our principles offreedom, it should be added, serves the broader goals of foreign policy;international trust in the United States, its citizens, and its values isgreatly enhanced to the extent America's power is tempered by accounta-

162. Id. at 590 (emphasis added).163. Id.164. Compare Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (advocacy may be forbid-

den only where "directed to inciting or producing imminent lawless action and ... likely toincite or produce such action), with Dennis v. United States, 341 U.S. 494, 512 (1951) (uphold-ing conviction for conspiracy "to advocate and teach the duty and necessity" of violentrevolution).

165. Agee, 453 U.S. at 292.166. It is instructive to note the insistence of Art. III, Sec. 3, that "Treason against the

United States shall consist only in levying War against them, or in adhering to their Enemies,giving them Aid and Comfort." U.S. CONST. art. III, § 3, cl. 1 (emphasis added).

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THE FIRST AMENDMENT

bility to an informed citizenry, and to the extent its citizens freely andindependently participate in problem-solving efforts worldwide.

The Government has the power to preclude verbal acts that, by theirdirect effect, obstruct it in the conduct of foreign policy. As the SupremeCourt noted in the landmark case of Near v. Minnesota, "No one wouldquestion but that a government might prevent actual obstruction to itsrecruiting service or the publication of the sailing dates of transports orthe number and location of troops."' 67 These acts do not have their ef-fect by informing public debate or persuading persons to oppose policies;they obstruct the Government's conduct of foreign policy by the merefact of their occurrence, not by their influences on opinion. The Bran-denburg standard is based on the same concept: advocacy can be bannedonly where it is "directed to inciting or producing imminent lawless ac-tion"-not where it might rationally persuade persons of the merits oflawless action, but only where its inflammatory nature and context risktriggering lawlessness in advance of any rational reflection.' 6 Similarly,freedom of expression is not a license-whether in the foreign affairs ordomestic realm-to engage in extortion, bribery or fraud, since these ver-bal acts form no part of reasoned discourse or democratic participation.

The Government has no overriding interest, however, in preventingthe nature of its activities from being exposed, debated, and contradicted,whether at home or abroad, even if such exposure, debate or contradic-tion threatens to render established policies untenable. Thus, as Con-gress has acknowledged in its recent passport legislation, one cannotaccept then-Solicitor General McCree's suggestion during the Agee oralargument that the Secretary of State could properly determine travel toEl Salvador for the purpose of denouncing U.S. policies to constitute''causing ... serious damage to the national security or the foreign policyof the United States" so as to justify passport revocation.' 69 Freedomand democracy will almost inevitably "cause damage" to meticulous pol-icy designs devised from above, but our constitutional system was notintended to shield policies from opposition.

Nor does it make sense to limit the right of opposition to the domes-tic realm in this era of participation by independent experts, dissidents,and NGO's from around the world in the international discourse onhuman rights, disarmament, and environmental policy. The Constitu-tion empowers policymakers temporarily to speak for the nation, but itexpressly and in unconditional terms reserves to individuals the right to

167. 283 U.S. 697, 716 (1931).168. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).169. See Agee, 453 U.S. at 319 n.9.

Spring 1993]


speak for themselves. 7 'It follows that there should be no prohibition, such as that in the

Logan Act, against citizen communications with foreign governments in-tended to influence those governments' conduct toward the U.S., or evenintended "to defeat the measures of the United States," so long as thosecommunications merely convey the information, ideas, and opinions thatall Americans are indefeasibly privileged to express.' Often, communi-cating with foreign leaders is a form of participation in domestic politics,for the international political arena is indivisible; when a George Loganor a Jesse Jackson, by meeting with an officially-disfavored foreignleader, cause the foreign government to appear in a light that underminessupport among Americans for a U.S. policy of confrontation, he works to"defeat the measures" (or machinations) of U.S. policymakers in just themanner that constitutional democracy, by its essence, makes available.Even where this is not the case, however, the possibility that an officially-disfavored foreign leader may benefit at the expense of U.S. policy byreceiving the views of individual Americans does not justify the Govern-ment in imposing what amounts (in this, the information age) to an em-bargo on political ideas-a notion which is, in any event, so ludicrouslyimpractical as to lack a rational basis.'72 Philip Agee's suggestion to theIranians that they trade hostages for intelligence information might nothave been a welcome addition to the ideas in play during that interna-tional incident, but attempting to bar the flow of such ideas is not a suffi-ciently sensible policy to justify restricting free expression.

Not all circumstances, of course, are unambiguous. Agee's cam-paign to expose CIA activities in foreign countries entailed disclosure ofinformation informative to democratic discourse, both in the U.S. andabroad. The secret placement of CIA operatives in certain positionsabroad raises troubling issues regarding American values and the integ-rity of foreign political systems. These deceptive practices may contami-nate our own political process, as when an ostensibly independentNicaraguan opposition leader, later revealed to have been on the CIA

170. "Congress shall make no law . . . abridging the freedom of speech ..... U.S.CONST. amend. I.

171. Efforts by states such as South Africa (in regard to advocacy of divestiture) andIsrael (in regard to meetings with PLO officials) to limit the speech or associations of theirnationals abroad are hardly models of effective policy, let alone models compatible with U.S.constitutional traditions. One could well imagine the reaction if a Chinese dissident, havingmet with U.S. officials, were to be prosecuted in China for attempting thereby "to defeat the[repressive] measures" of China.

172. Obviously, such an embargo would also directly violate the guarantee of "freedom to... impart information and ideas of all kinds, regardless of frontiers" under Article 19(2) ofthe International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171,178.

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payroll, testified before Congress in 1985 to urge certain policies towardthat country. Disclosure of the nature of these practices is thus, by thecriteria indicated above, expression worthy of protection,'73 yet even dis-closure of the specifics of a policy in progress may at times be the onlymethod of usefully informing public debate on an issue of general con-cern. The problem is that while the former permissibly interferes withthe perpetuation of controversial policies, the latter-whatever its valueto democratic discourse-also interferes with the conduct of policy byoperating directly, without mediation by political processes, to defeat thepolicy. When the verbal act of one person defeats the policy of dulyauthorized officials, it is hardly clear that democracy is served; on theother hand, covert policies are arrived at undemocratically, and tend toviolate international law as well as the law of foreign countries (includingdemocracies).

The clear case occurs where the verbal act is likely to result directlyin the deaths of CIA operatives, prevention of which is a compelling in-terest of the Government. 74 It is this circumstance that Justice Brennanaddressed in reasserting the time-honored standard in his Haig v. Ageedissent: "Only when there is proof that the activity 'must inevitably, di-rectly, and immediately cause the occurrence of an event kindred to im-periling the safety of a transport already at sea' does the Near exceptionapply."' 75 In this circumstance, the compelling interest in barring the"verbal act" aspect of the expression outweighs the right to engage in theinformative and persuasive aspect. It is only where actions have irre-trievably been taken and lives lie in the balance that expression of revela-tions pertinent to public discourse can be unequivocally deemed aninferior value.

The Government also has a compelling interest in precluding actualinterference in negotiations. Given the tremendous weight of the U.S. inworld affairs, it would rarely, if ever, be possible for an actor subject toU.S. jurisdiction to bid against the Administration in negotiations with aforeign nation. An illustrative scenario is provided by the alleged "Octo-ber Surprise" conspiracy, in which officials of the 1980 Reagan Presiden-tial Campaign were said to have induced the Iranians to withhold therelease of U.S. hostages until after the U.S. elections, in return forpromises of arms from the prospective Administration. Such activity

173. I will not grapple here with the complicated question of the violation by a CIArenegade of a contractual obligation of confidentiality. See Snepp v. United States, 444 U.S.507 (1980).

174. The Court in Agee made reference to some evidence that Agee's disclosures hadresulted in violence against CIA operatives. 453 U.S. at 286-87 n.7.

175. Id. at 320-21 n.10 (Brennan, J., dissenting) (quoting New York Times Co. v. UnitedStates, 403 U.S. at 726-27 (Brennan, J., concurring)).

Spriniz 19931 THE FIRST AMENDMENT


would genuinely constitute what might otherwise appear an oxymoron-unauthorized negotiation on behalf of the United States. Such expressionseeks not to inform or persuade, but to bribe or extort, and deserves noFirst Amendment protection.

Consistent application of First Amendment principles further re-quires that the American citizenry not be denied access to foreign polit-ical figures who seek to visit the United States where the Administrationclaims that "adverse foreign policy consequences," however "potentiallyserious," will arise from political speech. The newly amended exclusionstatute is obscure on this point, permitting an alien's "past, current, orexpected beliefs, statements, or associations" to be a partial (but not"sole") basis for the exclusion of foreign officials and political candidates,and a partial or sole basis for the exclusion of other aliens where theSecretary certifies that "admission would compromise a compellingUnited States foreign policy." '176 It is difficult to understand how analien's presence could, by virtue of his "past, current, or expected beliefs,statements or associations," actually "compromise a compelling UnitedStates foreign policy." '77 The statute leaves open the use of exclusion toforeclose a political debate that could not possibly interfere with the con-duct of foreign policy, but might simply interfere with the designs ofpolicymakers to perpetuate their policies without opposition.

A federal district judge once eloquently disposed of this problem asfollows:

It may well be that the public interest will, in some respect, beadversely affected by affording a forum to a PLO representativewhose policies are in conflict with those of the United Statesand indeed are anathema to many citizens. The public interestin preserving free and open debate on precisely such subjects,however, must be regarded as of overwhelming priority, asmandated by the First Amendment, and as being at the heart ofour survival as a free people.1 78

That judgment did not stand, but should have. It acquires additionalforce with our nation's recent pledge, through ratification of the Interna-tional Covenant on Civil and Political Rights, to ensure "freedom toseek, receive and impart information and ideas of all kinds, regardless offrontiers."' 79 Indeed, judicial vigilance must extend beyond those caseswhere suppression of debate is the avowed purpose; strict scrutiny shouldbe applied wherever the effect of governmental action is to deny the right

176. 8 U.S.C. § 1182(a)(3)(C) (1993).177. Involvement in terrorist or Nazi activities, the two obvious bases for important sym-

bolic stances, are covered elsewhere in the section. See 8 U.S.C. § 1182 (1993).178. Harvard Law School Forum v. Shultz, 633 F. Supp. at 531-32 (Skinner, J.).179. International Covenant, supra note 157, art. 19(2), 999 U.N.T.S. at 178.

I3/ol. 2:255

to receive information from foreign sources.180

Reasonable minds may differ as to whether steadfastness in the ex-pression of moral revulsion constitutes a compelling interest justifyingexclusion of speakers (possibly including such independently significantpersonages as Austria's Kurt Waldheim and such multifaceted figures asCambodia's Hun Sen) on the basis of their direct participation in geno-cide or Nazi persecutions.' 8

1 The same can be said regarding exclusionof speakers who have been directly engaged in terrorist activities,' 82

though one does well to remember the bromide that yesterday's terroristis tomorrow's statesman: the passage of time and the intervening ac-cumulation of more legitimate actions clearly renders the interest lesscompelling (as in the case of Yitzhak Shamir's Stern Gang activities inthe 1940s"8 3). The exclusion statute's irrebuttable presumption againstPLO representatives clearly fails the test; so does any diplomatic "coldshoulder" policy, since the Administration has at its disposal the lessdrastic means of refusing to meet with disagreeable foreigners.

The same strict scrutiny should apply to travel restrictions. As Jus-tice Douglas noted in his dissent in Zemel v. Rusk, "The right to know,to converse with others, to consult with them, to observe social, physical,political and other phenomena abroad as well as at home gives meaningand substance to freedom of expression and freedom of the press."'8 4

Thus, "[r]estrictions on the right to travel in times of peace should be soparticularized that a First Amendment right is not precluded unlesssome clear countervailing national interest stands in the way of itsassertion." 8 5

The current restrictions on travel to Cuba, unlike those dealt with inZemel, are based on the goal of depriving Cuba of hard currency thatAmerican travelers would spend there. Whether or not this goal can bedeemed compelling, the current regulations at the very least evince aninappropriate hostility to travel for educational purposes. A "general li-cense" is granted for officials, journalists, professional researchers, andthose travelling to visit close relatives. 8 6 The existence of the licenseseems to confirm what may otherwise be intuited: that the policy is suffi-ciently served if mass tourism, engaged in for relaxation or generalamusement, is precluded. Such preclusion is itself a burden on the right

180. See Lamont v. Postmaster General, 381 U.S. 301, 308-09 (1965) (Brennan, J., con-curring) (applying the "compelling governmental interest" test to interference with the right toreceive information from abroad).

181. 8 U.S.C. § 1182(a)(3)(E) (1993).182. 8 U.S.C. § 1182(a)(3)(B) (1993).183. See supra note 150.184. Zemel, 381 U.S. at 23 (Douglas, J., dissenting).185. Id at 26.186. 31 C.F.R. § 515.560(a) (1992).

Sprinst 19931 THE FIRST AMENDMENT


to receive ideas and information as an incidental benefit of vacationing ina foreign land, but this burden is arguably de minimis. The same cannotbe said of the express preclusion of "[s]tudy visits to Cuba in connectionwith pre-college or undergraduate college course work, .... general studytours," "student class field trips," and "research for personal satisfactiononly.""8 7 Such activities go to the heart of the First Amendment interest,whereas it is the additional hard currency at stake that is arguably deminimis. Courts must strictly scrutinize travel restrictions to remedy allsuch unnecessary constriction of the foreign policy debate.

Finally, strict scrutiny must be applied to the Foreign Agents Regis-tration Act. Although FARA does not directly bar expression, its cur-rent interpretation-calling for registration wherever the totality ofcircumstances implicates "the informative purposes of the Act"-sub-stantially burdens freedom of association and the free flow of informationand ideas across frontiers by: (1) exposing activists associating with for-eign political figures to expansive inquiries regarding their communica-tions and activities, (2) attaching a deliberately stigmatizing label toactivists who are associated with, but not under the control of, foreignentities, and (3) barring expression by persons who refuse to concedewhat they in good conscience believe to be false and defamatory.

The Supreme Court has on several occasions recognized the inhibi-tory effect of governmental information-gathering on association and ad-vocacy. 18 8 As Justice Frankfurter noted in his concurrence in Sweezy v.New Hampshire, where the petitioner refused to answer inquiries regard-ing his political party and regarding the content of an academic lecture:

For a citizen to be made to forego even a part of so basic aliberty as his political autonomy, the subordinating interest ofthe State must be compelling .... [The] inviolability of privacybelonging to a citizen's political loyalties has so overwhelmingan importance to the well-being of our kind of society that itcannot be constitutionally encroached upon on the basis of someagre a countervailing interest of the State as may argumenta-tively be found in the remote, shadowy threat to the security ofNew Hampshire allegedly presented [by Sweezy's relationship

187. 31 C.F.R. § 515.416 (1993). But see 31 C.F.R. § 515.560(b) (1993) (recentlyamended to authorize issuance of "specific licenses" for educational purposes in "appropriatecases").

188. See NAACP v. Alabama, 357 U.S. 449 (1958) (corporate registration statute's rou-tine demand for membership lists held unconstitutional where disclosure "may induce mem-bers to withdraw from the Association and dissuade others from joining it because of fear ofexposure of their beliefs shown through their associations and of the consequences of this[exposure]"); Gibson v. Florida Legislative Committee, 372 U.S. 539 (1963) (investigation ofCommunist infiltration insufficient to justify compelled disclosure of NAACP's membershipand contributor lists).

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to the Progressive Party]."8 9

The concerns at stake often weigh more heavily in the cross-border con-text, where both Americans and foreigners exposed in the inquiry mayoperate under adverse conditions abroad, without recourse to legal pro-tections taken for granted in the United States.

Under FARA an activist or activist group, operating independentlyfrom but in voluntary coordination with a foreign group, may be barredfrom conveying beliefs or information unless it first accepts the stigma-tizing label of "foreign agent." The Court recognized the First Amend-ment consequences of stigmatization in Lamont v. Postmaster General ofthe United States.'9° In that case, the post office had sought to blockdelivery of what it deemed "communist political propaganda" fromabroad, absent the addressee's express written indication of a desire toreceive such mail. The Court held as follows:

The addressee carries an affirmative obligation which we do notthink the Government may impose on him. This requirementis almost certain to have a deterrent effect, especially as respectsthose who have sensitive positions. Their livelihood may be de-pendent on a security clearance. Public officials, like school-teachers who have no tenure, might think they would invitedisaster if they read what the Federal Government says con-tains the seeds of treason. Apart from them, any addressee islikely to feel some inhibition in sending for literature which fed-eral officials have condemned as "communist political propa-ganda." The regime of this Act is at war with.. ."uninhibited,robust and wide-open" debate and discussion . ...

Although the Court somehow managed to find in Meese v. Keene that theAct's use of the term "propaganda" to characterize foreign-government-distributed documentaries was technically "neutral" and thereby consti-tutionally inoffensive,' 92 it is inconceivable that the application of theterm "foreign agent" to one not under the control of a foreign entity canbe so found, even by use of the most sterile semanticism.

It is predictable that, should FARA ever be enforced as broadly asthe INAC decision permits, many individuals and groups subject to theAct will, as a matter of principle, refuse to register. Their continuingactivities would then be criminally punishable. Such a result would eas-ily be recognizable as repressive if it were to befall an organizationabroad friendly to and engaged in consultation with the U.S.

189. Sweezy v. New Hampshire, 354 U.S. 234, 265 (1957) (Frankfurter, J., concurring).

190. 381 U.S. 301 (1965).191. Id. at 307.192. 481 U.S. 465, 477-85 (1987).

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Government.' 93

Whatever may be the compelling interest underlying application of aregistration and disclosure regime to individuals and organizationswhose activities are controlled by foreign entities, it is difficult to imaginethe compelling interest justifying extension of that regime to others, un-less one improperly admits perpetuation of foreign policies as a compel-ling interest. The fact that American activists may be in sympathy andclose contact with a disfavored foreign government or organization doesnot justify limiting their First Amendment rights on foreign policygrounds.

Application of First Amendment strict scrutiny to laws restrictive ofparticipatory rights in the foreign affairs realm brings about a "domesti-cation" of these laws, thereby bringing the U.S. into compliance withinternational law standards that are, in actuality, based on an Americanconception of free expression. Complying with Article 19 of the Interna-tional Covenant requires nothing more or less than facing up to our ownconstitutional values, which, when reflected back at us in this way, illu-minate the shortcomings of our own constitutional practice. By imple-menting the words, "regardless of frontiers," constitutionaljurisprudence can eradicate the infringements inherent in each of the re-strictive laws pertaining to foreign affairs.

IV. CONCLUSION

In the domestic affairs realm, it is taken for granted that searchingjudicial review is required to protect the exercise of constitutionally-guar-anteed rights from the potentially partisan and anti-democratic designsof a ruling faction. Yet, in the foreign affairs realm, zealous judicial de-fense of individual rights, and of the democratic process that could notexist without them, has at times given way to an uncharacteristic trust inpaternal and omniscient governmental officials. Persons acting with thegovernmental imprimatur are presumed to be acting in the interest of thenation as a whole, and the matters to which they address themselves aredeemed too complex and demanding of special knowledge for the verycourts that have designed sweeping school desegregation plans andpassed on the constitutionality of the most technical economicregulation.

In reality, official conduct of foreign affairs is as likely to be perme-ated by a partisan spirit as is the framing of domestic policy, and the

193. In the 1980s, organizations operating more or less freely within Nicaragua oftenengaged in activities "requested" by the U.S. Government. Had the Nicaraguan Governmentsought to compel them to register as U.S. agents, their heroic refusal and ensuing unjust im-prisonment would undoubtedly have made them a cause celebre in the United States.

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complexity of foreign affairs issues is as varied as that of domestic issues.Officials often pursue foreign policies that are viewed by significant sec-tors of public opinion as completely contrary to the enlightened interestsand values of our nation, and when given a free hand, such officials maybe mightily tempted to hamstring their opponents by enacting measuresaimed at limiting democratic discourse. Unless their power is "domesti-cated," and the democratic process enabled to check their actions, thepotential for foreign policy disaster abounds.

the first amendment in the foreign affairs realm

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